California debates ‘yes means yes’ sex assault law

New students at San Diego State University watch a video on sexual consent during an orientation meeting Friday, Aug. 1, 2014, in San Diego. Defining consensual sex is a growing trend by universities under pressure to do more to protect victims. Throughout the country, schools have been adopting policies on their own that set the parameters for distinguishing when consent was given for a sexual activity and when it was not. (AP Photo/Gregory Bull)

New students at San Diego State University watch a video on sexual consent during an orientation meeting Friday, Aug. 1, 2014, in San Diego. Defining consensual sex is a growing trend by universities under pressure to do more to protect victims. Throughout the country, schools have been adopting policies on their own that set the parameters for distinguishing when consent was given for a sexual activity and when it was not. (AP Photo/Gregory Bull)

College students have heard a similar refrain for years in campaigns to stop sexual assault: No means no.

Now, as universities around the country facing pressure over the handling of rape allegations adopt policies to define consensual sex, California is poised to take it a step further with a first-in-the-nation measure requiring all colleges that receive public funds to set a standard for when “yes means yes.”

Defining consensual sex is a growing trend in an effort to protect victims, with schools from the University of California system to Yale adopting standards to distinguish when consent was given for a sexual activity and when it was not.

Legislation passed by California’s state Senate in May and coming before the Assembly this month would require all schools that receive public funds for student financial assistance to set a so-called “affirmative consent standard” that could be used in investigating and adjudicating sexual assault allegations. That would be defined as “an affirmative, unambiguous and conscious decision” by each party to engage in sexual activity.

Silence or lack of resistance does not constitute consent, nor can it be construed if the person is drunk, drugged, unconscious or asleep.

Lawmakers say consent can be nonverbal, and universities with similar policies have outlined examples as maybe a nod of the head or moving in closer to the person.

Several state legislatures, including Maryland, Texas and Connecticut, introduced bills in the past year to push colleges to do more after a White House task force reported that 1 in 5 female college students is a victim of sexual assault. The U.S. Education Department also took the unprecedented step of releasing the names of schools facing federal investigation for the way they have handled sexual abuse allegations.

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But no state legislation has gone as far as California’s bill in requiring a consent standard.

Critics say the state is overstepping its bounds. Some fear navigating the murky waters of consent spells trouble for universities. “Frequently these cases involve two individuals, both of whom maybe were under the influence of alcohol or drugs, and it can be very tricky to ascertain whether consent was obtained,” said Ada Meloy, general counsel of the American Council on Education, which represents college presidents.

John F. Banzhaf III, a George Washington University Law School professor, believes having university disciplinary panels interpret vague cues and body language will open the door for more lawsuits.

The legal definition of rape in most states means the perpetrator used force or the threat of force against the victim, but the California legislation could set the stage in which both parties could accuse each other of sexual assault, he said. “This bill would very, very radically change the definition of rape.”

UC Berkeley student Meghan Warner, 20, said that’s a good thing. She said she was sexually assaulted in her freshman year by two men at a fraternity but didn’t report it because she believed “that unless it was a stranger at night with a weapon who attacked you when you were walking home, that it wasn’t rape. It’s just a crappy thing that happened.” She now runs campus workshops to teach students what constitutes consent.

“Most students don’t know what consent is,” she said. “I’ve asked at the workshops how many people think if a girl is blacked out drunk that it’s OK to have sex with her. The amount of people who raised their hands was just startling.”

“California needs to provide our students with education, resources, consistent policies and justice so that the system is not stacked against survivors,” state Sen. Kevin de Leon, a Los Angeles Democrat, said in promoting the bill.